How can a same-sex couple qualify for EB-5?

I am a gay person in Taiwan with a Taiwanese partner. We have a nine-year-old son who is under the custody of my partner. My partner and I have no legal relationship now. How can we three apply to immigrate to the United States as a family?

Answers

While the USCIS now recognizes same sex marriages, you need to have your relationship recognized by the country of residence. If Taiwan does not recognize your marriage, it will create an issue, as all three of you cannot apply on the same petition.

Since you stated you and your partner currently have no legal relationship now, the three of you cannot immigrate to the United States as a family. Therefore, until you and your partner marry, whether in Taiwan or in any jurisdiction that recognizes your marriage, you won''t be able to immigrate to the United States as a family. If both of you were to marry in a jurisdiction that recognizes your marriage, the United States would recognize such a marriage as well, and the three of you can immigrate. Advisably, before you proceed further, consult an immigration attorney.

In order for your partner to receive U.S. immigration benefits based upon your case, you must be married to each other, and the marriage should be recognized in the jurisdiction where it occurred. The child is in the legal custody of your partner, so that should not be an issue.

In order to include your same-sex partner in the lawful permanent residence or immigrant visa processing, you will need to be legally married. The United States will recognize same-sex marriage and allow for immigration benefits to the spouse.

With the recent Supreme Court decision, same sex couples (in a valid marriage) are now eligible for the same immigration benefits as heterosexual couples. The first step would be for you and your partner to enter in to a valid marriage. USCIS will recognize your legal marriage, and you may apply together.

When applying to get your permanent residency, you usually have to provide proof of the relationship for your dependents. Generally this is in the form of a marriage certificate. If that is not available, you may have to compile additional evidence of your relationship to qualify your partner as a derivative beneficiary.

Under current U.S. immigration policy, same-sex partners in a valid relationship may apply for permanent residency to the United States under the EB-5 program. However, the same-sex partnership has to be recognized in a legal marriage relationship in their home country first, before they file for residency to the United States.

The United States now extends the same benefits to homosexual couples as they do to heterosexual couples. If you are precluded from marrying under the laws of your home country, you will need a more in-depth conversation with at attorney. However, if you are permitted to marry, in order to confer an immigration benefit to your partner, you must be married for the immigrant visa. Likewise, a heterosexual couple who have a domestic partnership are also in the same boat, and must be married for immigration purposes. Do you have any parental rights over your son? If you do, your son can certainly be included in the application. If not, again, you need to consult with an attorney.

You have to have get married at some location that recognizes same-sex marriage. After that, USCIS and the Department of State (U.S. embassies and consulates) will recognize the marriage regardless of whether the U.S. state in which you will be living recognizes gay marriage. More facts are needed to fully advise on the son, but he should not be a problem.

Your partner could get a B-1/B-2 as your domestic partner, and in the United States you could marry, and your partner apply for an immigrant visa, possibly. But there is a problem in that you can only get a B-1/B-2 if you do not intend to immigrate, so it could be tricky.

The requirement is the same as it is for heterosexual marriages. Your partner would need to be married to you in order for one of you to qualify as a derivative visa beneficiary. The only caveat is that USCIS will only recognize a marriage for immigration purposes if it is recognized as a valid marriage in the jurisdiction where one is wed. For example, USCIS will recognize a same-sex marriage entered into in Canada, but not in Saudi Arabia, because Canada recognizes such unions and Saudi Arabia does not. The same would be true for a same-sex marriage in New York (valid) versus Pennsylvania (presently outlawed by statute). For more info, see http://www.uscis.gov/family/same-sex-marriages.

U.S. immigration laws have changed to respect the rights of same-sex married couples. Please contact a qualified EB-5 lawyer to further discuss your options.

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